Wednesday, 21 January 2015

The Newman Government’s Water Act amendments: Part 2 - Uncoordinated Approval System

 by George Houen
Image sourced Qld Government, water bores
Uncoordinated Approval System
Currently mine dewatering must be authorised by a water licence under the Water Act, application for which is a separate process from the mining lease and environmental authority and it occurs separately and much later. It also has its own appeal process, for which the Land Court is also the arbitrator. 
The Land Court has found that currently it has only marginal jurisdiction on the issue because the water licence is not part of an objections hearing. This leaves landholders potentially affected by impacts of dewatering with nowhere to go. President of the Court CAC MacDonald, in her judgement on the objections hearing for the Wandoan Coal project2, addressed her observations about this undesirable dichotomy to the respective Ministers for Mines and Environment, saying (inter alia) at [608]: 
             The impacts of water diversions and extractions associated with the project seem to me to be highly relevant to any consideration of whether the project should be approved or refused. In my opinion, it is unsatisfactory that the impacts of water extractions and diversions are not properly assessed and considered under the Water Act until after the project has been approved under the MRA and the EPA.

The separate (and later) water licence application and approval process doesn’t allow cumulative impacts of mining to be properly addressed and by the time a decision is made on grant of a water licence it is likely that the mining project will already have been approved. Thus it is unlikely the decision maker for the water licence will reject the application and so derail the project. If a landholder did appeal the grant that would be a doubling up of their cost and time spent on an objections hearing.                     

Some water licenses for mine dewatering may have make good conditions, but never on terms that realistically are enforceable – ie. no proper baseline testing of the individual bore for sustainable yield (water levels are not enough), no proper monitoring to develop data and no properly derived trigger values. That is, a bore owner relying on such a make good condition could not meet the onus of proof or the standard of proof required to sustain a make good claim.   

The present legislation governing approval of mine dewatering is dysfunctional and needs to be fixed – not by the process set out in the Bill but by way of a scheme:
  1. placing approval of mine dewatering under the Environmental Protection Act;
  2. integrating objections with the mining lease/environmental authority approval process, such that cumulative impacts cab be assessed;
  3. providing transparency, appropriate assessment of impacts and the right for objectors to be heard before the Land Court;
  4. making dewatering conditional upon the proponent having first settled make good agreements with all potentially affected bore owners;
  5. putting disposal of associated water from mines on a similar footing to the disposal obligations of CSG producers, ie. requiring it only be released after treatment by reverse osmosis;
  6. the miner’s right to use the associated water for any purpose anywhere be subject to first offering it free of charge to landholders affected by the dewatering.
It seems inappropriate that this authority to dewater (including by evaporation from a mine pit) is placed in the Mineral Resources Act. Perhaps this is done deliberately to exploit the prohibitions and limitations placed on mining lease objections by the Common Provisions Act. 
Image sourced ABC: Coal Seam Gas by the numbers.

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